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ELCStruck OutNot stated in the judgment extract· [2022] KEELC 2092 (KLR)

Fidesio Kinyua Mark t/a Jobin Enterprise v Eco Bank Kenya Limited & 3 others [2022] KEELC 2092 (KLR)

Environment and Land Court
19 January 2022
758 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan appeal died automatically when the appellant died and no one was substituted within one year, so the court struck it out with costs.

What this practically means

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Executive summary

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This was a ruling on a preliminary objection dated 8.10.2021 by the 4th respondent in an appeal filed on 13.12.2018 against a lower court ruling concerning L.R No. Ntima/Ntakira/5478. The 4th respondent argued that the appeal had abated on 23.8.2021 under Order 24 Rule 2(2) of the Civil Procedure Rules because the sole appellant died on 23.8.2020 and was never substituted, and that the appeal was in any event overtaken by events since the suit property was sold at public auction on 2.5.2018 and transferred to the 4th respondent, with a title deed issued on 14.11.2019. A substitution application by Emily Gacheri Kinyua, supported by a limited grant ad colligenda bona, was dismissed for non-prosecution on 12.10.2021. The appellant filed no response to the preliminary objection. Citing authorities on abatement and revival of appeals, the court held that as at 23.8.2021 no substitution had occurred and no extension of time or revival application had been made, so the court could not exercise any discretion in the appellant's favour. The court further held the appeal untenable and academic, the orders sought being spent after the property changed hands. The preliminary objection was upheld and the appeal struck out with costs. Judgment delivered at Meru on 19 January 2022 by C.K. Nzili, ELC Judge.

Key legal issues

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01

Abatement of appeal on death of sole appellant

Holding

The appeal abated on 23.8.2021, one year after the appellant's death on 23.8.2020, as no substitution or extension of time application was made under Order 24 Rule 2(2).

Reasoning

The death of the appellant on 23.8.2020 was admitted. Order 24 Rule 2(2) requires substitution within one year of death. The only substitution application was dismissed for non-prosecution on 12.10.2021, and no application for extension of time or revival of the appeal was ever made, leaving the court unable to exercise any discretion in the appellant's favour.

p. 2
02

Appeal overtaken by events

Holding

The appeal was overtaken by events and had become an academic exercise because the suit property was sold at public auction on 2.5.2018 and transferred to the 4th respondent, with a title deed issued on 14.11.2019.

Reasoning

The record showed that on 17.7.2019 the court was informed the auction sale and transfer had taken place, and it declined to maintain the status quo. The appellant did not deny the 4th respondent's contention that the orders sought were spent, rendering the appeal untenable.

p. 2

Legal principles established

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  • An appeal abates where a sole appellant dies and no substitution or application for extension of time to substitute is made within one year of death under Order 24 Rule 2(2) of the Civil Procedure Rules
  • A court cannot exercise discretion in favour of an appellant where no application for revival of the appeal has been made
  • An appeal whose reliefs are spent because the suit property has been transferred is untenable and academic

Court orders

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  1. 1.Preliminary objection dated 8.10.2021 upheld
  2. 2.Appeal struck out with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 2(2)

Cases cited (10)

  • Kaboi Mucheru –vs- Gakua Mucheru Mbugi
    [2015] eKLR
  • Musha Chengo Kenga & Another –vs- Lexon Kahindi Fakuro on behalf of Fakuro Randu
    [2019] eKLR
  • Said Sweilen Gheithan Saanun –vs- Commissioner of Lands (being sued through Attorney General & 5 Others
    [2015] eKLR
  • Eric V.J Makokha & 4 Others –vs- Lawrence Sagini & 2 Others
    [1994] eKLR
  • Issa Masudi Mwabumba –vs- Alice Kavenya Mutunga & 4 Others
    [2013] eKLR
  • Abok James Odera T/A A.J Odera & Associates –vs- John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Elizabeth Wanjiru Njenga & Another –vs- Margaret Wanjiru Kinyara & 2 Others
    [2018] eKLR
  • Vyatu Ltd & Another –vs- Public Trustee Njanza Province
    [2003] eKLR
  • Samson Ngugi Ichungwa T/A Grenair –vs- National Industrial Credit Bank & 2 Others
    [2019] eKLR
  • Charles Wanjuki Miricho suit as the personal representative of the Estate of Stephen Miricho Ngunjiri –vs- Wanjiru Baari Thitwa
    [2021] eKLR
On appeal from
Chief Magistrate's Court (lower court)
Jurisdiction invoked
Appellate jurisdiction over an appeal against a lower court ruling, under the Civil Procedure Rules (Order 24 Rule 2(2) invoked on abatement)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Fidesio Kinyua Mark t/a Jobin Enterprise v Eco Bank Kenya Limited & 3 others [2022] KEELC 2092 (KLR)", Case Analysis (2022). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2092/eng@2022-01-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.